[Redacted], Sandy S., 1 Complainant,v.Dr. Miguel A. Cardona, Secretary, Department of Education, Agency.

Equal Employment Opportunity Commission

Mar 25, 2021

Appeal No. 2020004277 (E.E.O.C. Mar. 25, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Sandy S.,1 Complainant, v. Dr. Miguel A. Cardona, Secretary, Department of Education, Agency. Appeal No. 2020004277 Hearing No. 570-2019-01104X Agency No. ED-2018-OM-0025 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s April 3, 2020, final order concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. At the time of events giving rise to this complaint, Complainant worked as a Program Specialist at the Agency’s Office of Human Resources in Washington, D.C. On April 30, 2018, Complainant filed an EEO complaint alleging that the Agency subjected him to discrimination and harassment on the bases of race (African-American), sex (male), color (Black), and age (44), and in reprisal for prior protected EEO activity (Agency case numbers ED-2015-OM-0018 and ED-2016-OM-0019) when: 1. since July 2016, his supervisor has given Complainant lower-graded work assignments, assignments with competing deadlines, no adjustment of due dates of assignments with 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 2020004277 2 competing deadlines, and “email barrages” that interfere with his ability to complete assignments; 2. since 2016, Complainant has been required to train his supervisor about her job duties and make recommendations to her as part of his Results Achieved (REACH) performance plan; his REACH plan elements have been disregarded; and he has been required to act as Director when his supervisor is absent; 3. since 2016, his supervisor has been verbally abusive toward Complainant during staff meetings and has commented to his colleagues that he is “condescending, disgruntled, negative, untrustworthy, and evil”; 4. on or around July 11, 2017, his supervisor required that Complainant email her when starting his tour of duty and use the Skype for Business application while on duty so that she may monitor his duty status; 5. on July 12, 2017, Complainant’s second- and third-line supervisors required him to meet with them to discuss his prior EEO activity;2 6. on June 15, 2018, his supervisor made Complainant the sole staff person for new work initiatives benchmarked by the Office of Personnel Management; and 7. on July 27, 2018, his supervisor delayed processing Complainant’s leave requests and denied his request for annual leave based on his prior use of sick leave and new work assignments. Complainant also alleged discriminatory harassment in retaliation for prior EEO activity when: 8. on November 13, 2018, his supervisor issued Complainant a rating of “1.0 - Results Achieved” on his Fiscal Year 2018 REACH performance plan, resulting in no performance award; and 9. on November 30, 2018, Complainant became aware that he was bypassed to act as the Learning and Development Director. After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant timely requested a hearing. 2 The supervisors stated that they met with Complainant and other staff members to inform them that an administrative inquiry was being conducted into their allegations of a hostile work environment by the Director, and that there was no discussion of Complainant’s EEO activity. 2020004277 3 The AJ notified the parties sua sponte of an intent to issue a decision without a hearing and both parties filed responses. The AJ subsequently issued a decision by summary judgment in favor of the Agency. The Agency issued its final order adopting the AJ’s finding that Complainant failed to prove discrimination as alleged. The instant appeal followed. The Commission’s regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of the non- moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the outcome of the case. In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a)(stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, § VI.B. (as revised, August 5, 2015)(providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). In order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence, and he must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the Agency was motivated by discriminatory animus. Here, however, Complainant has failed to establish such a dispute. On appeal, Complainant argued that the AJ ignored his email evidence showing his supervisor’s animus toward him, but a review of the emails reveals that they were typical work-related emails regarding assignments, deadlines, and staff members’ schedules. We note that Complainant provided over 300 pages of emails and other documents, yet he did not highlight any examples of the alleged animus. Complainant also asserted that “virtually every fact” is disputed and that credibility assessments are needed for the management officials. For example, Complainant stated that that there was a dispute whether “there was an atmosphere in the office in which all African-Americans were treated as second-class citizens by having to logon to Skype to start their tour of duty as well as send an email” to their supervisor. However, Complainant did not cite to any evidence in the record to show that material facts were in dispute or that management officials were not truthful. We note that mere allegations, speculations and conclusory statements, without more, are insufficient to create a genuine issue of material fact. See Lee v. Dep’t of Homeland Security, EEOC Request No 0520110581 (Jan. 12, 2012) (citing to Baker v. U.S. Postal Serv., EEOC Appeal No. 01981962 (June 26, 2001), request for reconsideration denied, EEOC Request No. 05A10914 (Oct. 19, 2001)). Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. 2020004277 4 Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s decision. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the agency. Requests for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. 2020004277 5 Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610) You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. “Agency” or “department” means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations March 25, 2021 Date